Roberts v. Barnes

27 Wis. 422 | Wis. | 1871

Dixon, C. J.

If we take the definition of the term estray, as given by Blackstone, Kent, or any standard writer upon the common law, or as found in any of the law dictionaries, it' clearly appears that the. animals in question in this suit were not estrays in the common law sense of the word. From these definitions, several of which áre quoted in the brief of counsel foi the plaintiff1, it is shown that, to constitute an estray, the owner of the animal must be unknown, and that it must be found wandering. By wandering we understand, free from the care, control and custody of the owner, or where no one seeks, follows or claims. Burrill, in his dictionary, gives the definition from Fleta: “Pecus vagans, quod nullus petit, sequitur vel advocad; a wandering beast, which no one seeks, follows or claims.” He likewise gives that by Spelman: “ A beast which, having escaped from its keeper, wanders over the fields, its owner being unknown.” .See also Walters v. Glats, 29 Iowa, 437.

Upon the uncontroverted testimony, the cattle here were not estrays when the defendant claimed to take them up as such, because the owner was not then unknown to him, unless the legal signification of the term has been changed and enlarged, or a more extended application given to it by the statute. It is claimed that such is the effect of the statute, and that the intention of the legislature to make the term more comprehensive under it, is shown by the provision that “any person taking up a stray, shall, within seven days thereafter, notify the owner thereof, if to him known, and request such owner to pay all reasonable charges, and take such stray away.” R. S. ch, 43, sec. 2; Laws of 1869, ch. 54, sec. 2. In opposition to this view, we are referred to the statutory rule of construction enacted in subd. 1, sec. 1, ch. 5, R. S., that technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning. We are likewise referred to the general rule of construction adopted and acted upon by the courts, that where a word, having a well known and definite meaning at common law, is used in a statute, it shall be presumed to have been employed by the legislature in that sense, unless the contrary clearly appear. It is also said that the provision of the statute relied on was intended to prescribe seven days after taking up an estray, as the period of time in which the person taking it up may, if he can, ascertain who the owner is, before proceeding to file and post notices, or to advertise as subsequently required, and that the obvious interpretation is, that he shall notify such owner, if ascertained and known at or before the expiration of that time. These considerations seem to us decisive of the question, and to settle the construction as claimed by counsel for the plaintiff.

But the court below submitted the case to the jury merely upon the question, whether, within a reasonable time after the cattle escaped upon the premises of. the defendant, the servants and employees of the plaintiff, charged by him with the duty of looking after them, made pursuit for the purpose of returning them to the premises of the plaintiff, and were prevented from so doing by the defendant, who, in the meantime, had taken up the cattle. This was giving the case to the jury on terms certainly most favorable to the defendant. It was resting it entirely on the fact whether the cattle were wandering or not, or out of the care or control of the plaintiff, and with no one in immediate or reasonably close pursuit. Upon this ground the jury found against the defendant, as they clearly must have done upon the other, had that been submitted to them upon the law as stated in this opinion.

These views render all questions with regard to the division fence between the parties, and all points and exceptions growing out of that part of the case, wholly immaterial. Verdict and judgment must have gone against the defendant upon the grounds above stated, regardless of any rights he may have or claim, or causes of complaint which may exist, with respect to the division fence.

By the Court. — Judgment affirmed.

Lyon, J., took no part in the decision of this appeal, having presided at the circuit when the cause was tried.